| Matter of Isaiah F. |
| 2008 NY Slip Op 07832 [55 AD3d 1012] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Isaiah F., a Child Alleged to be Abandoned. CortlandCounty Department of Social Services, Respondent; John F., Appellant. (Proceeding No. 1.) In theMatter of Cellia F., a Child Alleged to be Abandoned. Cortland County Department of SocialServices, Respondent; John F., Appellant. (Proceeding No. 2.) |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent. Randolph V. Kruman, Law Guardian, Cortland.
[*2]
Peters, J. Appeal from an order of the Family Court ofCortland County (Campbell, J.), entered January 11, 2008, which granted petitioner's applications, intwo proceedings pursuant to Social Services Law § 384-b, to adjudicate respondent's childrento be abandoned, and terminated respondent's parental rights.
In August 2007, petitioner commenced these termination of parental rights proceedings againstrespondent regarding two of his children, Isaiah F. (born in 2002) and Cellia F. (born in 2004).Thereafter, Family Court adjudicated the children to be abandoned and terminated respondent'sparental rights. Respondent appeals.
A presumption of abandonment is shown when the petitioner proves that, for six monthsimmediately prior to the filing of a termination of parental rights petition, the respondent failed "to visitthe child and communicate with the child or agency, although able to do so and not prevented ordiscouraged from doing so by the agency" (Social Services Law § 384-b [5] [a]; seeSocial Services Law § 384-b [4] [b]). The respondent may rebut this presumption by showing"an inability to maintain contact" or discouragement by the petitioner (Matter of Kerrianne AA., 1 AD3d835, 836 [2003], lv denied 1 NY3d 507 [2004]; see Matter of Dennisha ShavonC., 295 AD2d 123, 124 [2002]).
Here, respondent became incarcerated in February 2006, with a possible release date of October2008 and a maximum release date of February 2010. In June 2006, the children were placed in fostercare. Petitioner presented evidence at the fact-finding hearing that respondent did not make any childsupport payments and did not seek to modify his child support obligation after the children were placedin foster care. Moreover, he did not call or send letters, gifts or birthday cards to the children at thefoster parents' home, nor did he seek visitation, contact petitioner regarding the children or sendcorrespondence for the children to petitioner. The caseworker for the children testified that she neitherdiscouraged nor prevented respondent from contacting her.
Countering petitioner's evidence, respondent testified that he wrote to petitioner monthly from 2006to sometime in 2007, and that he kept in touch with the children by communicating through his wife.Supporting this assertion, his wife testified that respondent sent her many letters and cards which sheread to the children during her supervised visitation and then saved. However, respondent did not makecopies of the correspondence he claimed that he sent, nor was his wife able to produce any cards orletters at the hearing. The only documentary evidence presented to support respondent's interest in thechildren during the relevant period was a letter he wrote to the Law Guardian in June 2007 asking thathe be kept "informed of [the children's] progress and care." Notably, his writing of this letter tends tocontradict his trial testimony to the effect that he received updates on the children from his wife.
Without credible evidence of any communication with the children and petitioner, respondent'sproffer was insufficient to rebut petitioner's proof that he did not contact the children or petitioner duringthe statutory period. Thus, Family Court properly found the testimony of both respondent and his wifeto be incredible in light of the contradictory and credible testimony offered by petitioner's staff that therewas no record of any letter from respondent until after the petition was filed. Moreover, parenteducators who supervised the wife's visitation with the subject children never saw her give anything tothe children from [*3]respondent and testimony revealed that thechildren did not mention communications from respondent to their foster parents. Accordingly, we findthat Family Court properly determined that petitioner met its burden of proving that respondentabandoned the subject children for the statutory period (see Social Services Law §384-b [3] [g]).
Cardona, P.J., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.